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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
PURDIE K. BURKES, APPELLANT,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Army veteran Purdie K. Burkes, through counsel, appeals a March 26,
2020, Board of Veterans’ Appeals decision that denied a disability rating greater than 50% for posttraumatic
stress disorder (PTSD) and denied service connection for left and right shoulder
disabilities, a headaches condition, a nasal disorder, a respiratory disability, irritable bowel
syndrome, restless leg syndrome, and a hand tremor condition. This appeal is timely, the Court has
jurisdiction to review the Board’s decision, and single-judge disposition is appropriate. See U.S.C.
§§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
For PTSD, we are asked to decide whether the Board erred in denying a higher disability
rating and not obtaining clarification from a medical examiner. Because the Board’s findings are
well explained and not clearly erroneous and because the record did not require clarification, we
will affirm that part of the Board’s decision.
For the other disabilities, we are asked to address whether the Board should have awarded
benefits based on a medically unexplained chronic multisymptom illness (MUCMI) under
38 C.F.R. § 3.317. As we explain below, remand is warranted for the Board to apply the correct
law and address relevant facts in the first instance.
We thus affirm that part of the Board’s decision that addressed PTSD, and we will set aside
that part of the Board’s decision that addressed conditions other than PTSD
- Single Judge Application; Spellers v. Wilkie; the Court held in Spellers v. Wilkie, with respect to the diagnostic code for incomplete paralysis of the sciatic nerve, which also rates the condition based solely on the level of severity (i.e., mild, moderate, severe), the “lack of objective criteria for differentiating between the specified severity levels means that any evidence indicating severity of incomplete paralysis of the sciatic nerve is necessarily relevant to the schedular rating level.” 30 Vet.App. 211, 219 (2018) (emphasis omitted);
- Single Judge Application; tinnitus; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings; evidence developed in processing that claim; claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim; The Board did not, however, address the reasonably raised issue of whether the veteran’s specific claim for tinnitus encompassed a claim for a vestibular condition manifesting in dizziness, as required by Clemons. In Clemons, the Court explained that, because lay claimants generally lack the medical knowledge to narrow the universe of a claim to a particular diagnosis, VA “should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim.” 23 Vet.App. at 5. “[T]he claimant’s intent in filing a claim is paramount to construing its breadth,” and factors relevant to that inquiry include “the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” Id. The Court ultimately held that the Board may not deny a claim because a lay claimant’s hypothesized diagnosis proves incorrect; rather, the Board must “confront the difficult questions of what current condition actually exist[s] and whether it was incurred in or aggravated by service.” Id. at 6. In so doing, the Board must make “affirmative finding[s] as to the nature of the [claimant’s] condition.” Id. In short, “the fact that the [claimant] may be wrong about the nature of his [or her] condition does not relieve the Secretary of his duty to properly adjudicate the claim.” Id.; see generally Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings that fail to enumerate precisely the disabilities included within the bounds of a claim,” which “is best accomplished by looking to the veteran’s reasonable expectations in filing the claim and the evidence developed in processing that claim”).;
- Single Judge Application; the ultimate “lesson of our cases is that, while a pro se claimant’s ‘claim must identify the benefit sought,’ the identification need not be explicit in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea v. Wilkie, 926 F.3d 1362, 1368–69 (Fed. Cir. 2019). Here, the claim-stating documents pointed, when sympathetically viewed, to a history of symptoms of abdominal pain that yielded a diagnosis of gastritis. And that’s not all. The veteran’s gastritis was expressly linked to service by VA’s own medical examiner—in the context of an examination sought by the Agency as part of the development of Mr. Martinelli’s other claims.; The Secretary says the veteran is out of his depth in suggesting to the Court that melatonin use indicates sleep issues. But even if that were true, the veteran retorts, the Secretary forgets the Court’s ability to take judicial notice of facts generally known. See Tagupa v. McDonald, 27 Vet.App. 95, 100-01 (2014). Indeed, one need look no further than a basic medical dictionary to conclude that his in-service prescription was favorable, material evidence. Melatonin is “a hormone . . . implicated in the regulation of sleep, mood, puberty, and ovarian cycles. It has been tried therapeutically for a number of conditions, including insomnia and jet lag.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1110 (33d ed. 2020). The Board has a responsibility to explain why it rejects favorable, material evidence. Garner v. Tran, 33 Vet.App. 241, 250 (2021).;
- Tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise (Loeb and Smith, 1967; Chermak and Dengerink, 1987; Metternich and Brusis, 1999; Temmel et al., 1999; Stankiewicz et al., 2000; Mrena et al., 2002).”
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Single Judge Application; a MUCMI is "a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." 38 C.F.R. § 3.317(a)(2)(ii). "Under the proper interpretation of the law, an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive." Stewart v. Wilkie, 30 Vet.App. 383, 390 (2018); "Conversely, a multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood." Id.; "[W]hether an illness is 'defined by a cluster of signs or symptoms' . . . is a question of fact delegated to the VA . . . for consideration in the first instance." Tadlock, 5 F.4th at 1338 (quoting 38 U.S.C. § 1117(a)(2)(B));
Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 20-4497PURDIE K. BURKES, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before FALVEY, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.FALVEY, Judge: Army veteran Purdie K. Burkes, through counsel, appeals a March 26,2020, Board of Veterans' Appeals decision...